Himachal Pradesh High Court
Date Of Decision: 04.07.2025 vs Kalpana Kumari on 4 July, 2025
Bench: Tarlok Singh Chauhan, Sushil Kukreja
1 ( 2025:HHC:21381 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO (FC) No. 11 of 2023
.
Date of Decision: 04.07.2025
_____________________________________________________
Vijay Kumar ...Appellant
Versus
Kalpana Kumari ...Respondent
___________________________________________________
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge
The Hon'ble Mr. Justice Sushil Kukreja, Judge
Whether approved for reporting? Yes.
________________________________________________
For the appellant : Mr. Ashwani Kaundal, Advocate.
For the respondent : Ms. Anchal Sharma, Advocate.
________________________________________________
Tarlok Singh Chauhan, Judge (Oral)
This appeal has been filed against the rejection of the application filed by the applicant/appellant for setting aside the ex parte judgment and decree dated 09.01.2015, passed by the learned Additional District Judge, Hamirpur, District Hamirpur, H.P., in HMA No. 53 of 2013.
2. We have gone through the records of the case and find that the notices issued for the service of the appellant (respondent before the learned trial Court) had never been served upon him and despite that the learned trial Court has readily allowed the application filed by the petitioner (respondent herein) for substituted service and thereafter, proceeded to record the evidence of the respondent and eventually passed ex parte ::: Downloaded on - 04/07/2025 21:31:56 :::CIS 2 ( 2025:HHC:21381 ) decree of divorce. It shall be apt to reproduce relevant orders, .
which read as under:-
"18.11.2013:
Respondent not served for want of correct address.
Since the case pertains to Sub Division Nadaun, Hamirpur, therefore, let notice be issued to respondent on PF/correct address to appear before the Circuit Court at Nadaun on 15.01.2014.
15.01.2014:
As per office report, PF and correct address not filed. Since the case pertains to Sub Division Nadaun, therefore, let notice be issued to respondent on filing PF/correct address to appear before Circuit Court as Nadaun on 20.02.2014.
20.02.2014:
Learned Presiding Officer is on leave today. Hence, put up for proper orders on 21.03.2014.
21.03.2014:
Taken up today for proper orders.
Petitioner moved an application under Order 5 Rule 20 read with Section 151 CPC for effecting substituted service upon the respondent by way of publication in news paper as the respondent could not be served by way of ordinary process and intentionally evading the service of summons. The application is considered and allowed. Let respondent be served by way of publication in daily news paper "Amar Ujala"
on taking steps within 7 days, for 24.05.2014."
3. It is extremely painful to note that despite the law being very well-settled, the courts below are resorting to substituted service callously and very casually that too at the initial stage of proceedings itself without even recording any satisfaction as mandated by the law and without directing the petitioner to take steps for serving the respondent by ordinary ::: Downloaded on - 04/07/2025 21:31:56 :::CIS 3 ( 2025:HHC:21381 ) procedure as laid down in order 5 Rules 12, 15 & 17 of the Civil .
Procedure Code (for short, "CPC").
4. Substituted service has to be resorted to as a last resort when the respondent cannot be served in the ordinary way and the court is satisfied that there is reason to believe that the respondent is keeping out of the way for the purpose of avoiding service, or that for any other reason(s), summons cannot be served in the ordinary way.
5. In the instant case, procedure of substituted service was resorted to automatically and that too mechanically. The course followed by the Family Court for initiating ex parte proceedings is absolutely illegal and is clearly against the dictum of this court in FAO (FC) No. 42 of 2021 titled Suman Sharma vs. Sanjeev Kumar Sharma, decided on 18.04.2024 wherein it was held as under:
"9. The perusal of the aforesaid order itself shows that the notice issued for 25.03.2020 was served upon the respondent through her elder brother, however, during the lockdown declared by the Government of India, the case could not be taken up on the date fixed and subsequently a report was made by the Process Serving Agency that the respondent was not residing with her parents and her whereabouts were not known. However, instead of furnishing the correct address of the respondent, the petitioner had filed the application for her substituted service through publication. At this stage, it would be relevant to reproduce Order 5 Rule 20 CPC, which reads as under:
"ORDER V ISSUE AND SERVICE OF SUMMONS
1. ... ... ... ... ... ...
20. Substituted service.-(1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of ::: Downloaded on - 04/07/2025 21:31:56 :::CIS 4 ( 2025:HHC:21381 ) the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the .
Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.[(1A) Where the Court acting under subrule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.] (2) Effect of substituted service.-Service substituted by order of the Court shall be as effectual as if it has been made on the defendant personally.
(3) Where service substituted, time for appearance to be fixed.-
Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require."
10. The bare perusal of Rule 20 of Order 5 CPC shows that the powers under this Rule are to be exercised and substituted service of the summons is ordered when one of the following conditions arises:
"1. That the defendant is keeping himself away and is avoiding service of summons; &
2. That for any other reasons, the summons cannot be served in the ordinary way."
11. In Swami Pragya Nand vs. Ram Swaroop Kapoor and others 1993 (1) SLC 54, it has been held that the provisions or Order 5 Rule 20 CPC are not be read in isolation but in conjunction with other provisions of Order 5 which shows that the order regarding service of defendant by way of publication in the newspaper is to be pressed as a last resort when there is no possibility of effecting service on him by other modes as provided therein. It has further been held that before passing order of substituted service by publication in the newspaper, the Court must satisfy itself that there are reasons to believe that the defendant was keeping out of the way to evade service. If the order of substituted service is passed mechanically by the Court, there is likelihood of misuse of the process of the Court. It would be relevant to refer para-9 of the judgment which reads as under:-
"9. In the present case, the provisions of Order 5, C.P.C have not been adhered to at all under Rule 12 of Order 5 C.P.C. it is provided that where ever it is practicable, service shall be made on the defendant in person unless he has an agent empowered to accept service in which case service on such agent shall be sufficient. Further, under Rule 15 of Order 5 C.P.C.it is laid down that if the defendant is not found by the Process Server nor has he any authorized agent to accept service of summons, service may be effected on any adult male member of the family of the ::: Downloaded on - 04/07/2025 21:31:56 :::CIS 5 ( 2025:HHC:21381 ) defendant who may be residing with him. Under Rule 17 of Order 5, C.P.C., if the serving officer, after using all due and .
reasonable diligence cannot find the defendant and there is no authorized agent or any male member of the house to accept service, the serving officer should affix a copy of the summons on the outer door or some other conspicuous part of the house in which defendant ordinarily resides or carries on business or personally works for gain and shall make a report relating thereto giving all the facts and circumstances. It is only then the modes of service provided under Rules 15 and 17 of Order 5, C.P.C. are complied with and the Court is satisfied and comes to the conclusion that there are reasons to believe that the defendant is keeping out of the way for the purpose of evading service or that for any other reasons, the summons cannot be served in ordinary way, the Court may order summons to be served by substituted service which is by affixing a copy on some conspicuous part of the house last resided by him or where he carried on business or personally worked for gain lastly. But this mode of substituted service is to be adopted as a last resort and the Court has been empowered to order service of the defendant in any other manner which has now been clarified in the amended Rule 20(1-A) that service may be ordered to be effected through publication in the newspaper. The provisions of Order 5 Rule 20, C.P.C. are not to be read in isolation but in conjunction with earlier provisions which shows that order regarding service of defendant by way of publication in the newspaper is to be passed as a last resort when there is no possibility of effecting service on him by other modes as provided therein. Before passing order of substituted service by publication in the newspaper, the Court must satisfy that there are reasons to believe that the defendant was keeping out of the way to evade service. If the order of substituted service is passed mechanically by the Court, there is likelihood of misuse of the process of the Court. So far the order of substituted service by publication in a newspaper is concerned, it should not be passed lightly without ascertaining whether the prerequisites of Order 5 Rule 20, C.P.C. are fulfilled as it is a matter of common knowledge that generally people do not read court notices in the newspapers. The anxiety of the Courts to expedite the proceedings in cases by hurrying up with the service of the defendant by resorting to extraordinary mode of substituted service, such as publication in the newspaper, may defeat the very purpose and result in gross injustice (See: Baljit Singh Bhatia v. Kulwant Singh and others, 1978 PLR 287; Kuldip Singh v. Sharan Singh, 1989 (1) PLR 536: Sant Kaur v. Khazan Singh, 1989 CCC 449, Smt. Ishro v. Sarmukh Singh, 1990 (1) PLR 324, Harbhej Singh v. Diwan Singh and others, 1990 CCC 258, and Bijender Singh v. Ranbir Singh and others, 1990 (1) PLR
375."::: Downloaded on - 04/07/2025 21:31:56 :::CIS
6 ( 2025:HHC:21381 )
12. Further, it is also fruitful to refer to the decision of the Hon'ble Apex Court in the case of Neerja Realtors Pvt. Ltd., versus Janglu (Dead) .
Through Legal Representative, reported in (2018) 2 SCC 649, wherein it has been held that substituted service is an exception to the normal mode of service, therefore, the Court must apply its mind to the requirements of Order 5 Rule 20 and its order must indicate due consideration of the provisions contained in it. The relevant portion of the aforesaid judgment reads as under:
"14. Evidently as the report of the bailiff indicates, he was unable to find the defendant at the address which was mentioned in the summons. The report of the bailiff does not indicate that the summons were affixed on a conspicuous part of the house, at the address mentioned in the summons. There was a breach of the provisions of Order 5 Rule 17. When the application for substituted service was filed before the trial court under Order 5 Rule 20, a cryptic order was passed on 2-9- 2011. Order 5 Rule 20 requires the court to be satisfied either that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reason, the summons cannot be served in the ordinary way. Substituted service is an exception to the normal mode of service. The Court must apply its mind to the requirements of Order 5 Rule 20 and its order must indicate due consideration of the provisions contained in it." ... ...
13. In the instant case, the perusal of the record reveals that no sincere attempt was made to effect service of the respondent by ordinary course or by sending summons by registered post. Mere service by publication in newspaper was not sufficient. The order dated 12.11.2020, passed by trial Court, is a cryptic order which did not record any satisfied reason that respondent was evading service of summons. Further the publication could be resorted to only after exhausting all the other modes of service, as enumerated under Order 5 CPC. The impugned order dated 28.07.2021, passed by the learned Court below, shows that the same has been passed mechanically. There was neither sufficient ground for ordering substituted service of respondent by publication in newspaper, nor necessary satisfaction for ordering substituted service, as required by Order 5 Rule 20 CPC, was recorded by the trial court before ordering substituted service by publication in newspaper."
6. In addition to the aforesaid judgment, the procedure adopted by learned Family Court is in complete defiance of the procedure and the judgment of the Hon'ble Supreme Court in ::: Downloaded on - 04/07/2025 21:31:56 :::CIS 7 ( 2025:HHC:21381 ) Yallawwa (SMT) vs. Shantavva (SMT), 1997 (11) SCC 159, .
more particularly para-5 thereof, which reads as under:-
"We have carefully considered the aforesaid rival contentions. In order to appreciate the main grievance of the appellant against the impugned order of the High Court, it is necessary to note at the outset that the respondent was seeking to get the order of the Trial Court dismissing her application under Order IX Rule 13 C.PC. quashed by the High Court. It is true that she moved a revision application for that purpose but the order of the Trial Court refusing to set aside the ex parte decree was clearly appealable under Order XLIII Rule 1(d) C.P.C. which provides that an appeal shall lie from the orders listed in the said provision and in clause (d) is mentioned an order under Rule 13 if Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree granting divorce under Section 13(1)(i-b) whether ex parte or bipartite is a decree which is appealable under Section 28 of the Hindu Marriage Act, 1955. Consequently, the order of the Trial Court refusing to set aside such an ex parte decree and rejecting the application under Order IX Rule 13 C.P.C. could have been validly made the subject-matter of an appeal under order XLIII Rule 1(d). Therefore, the revision application filed by the respondent before the High Court should be treated in substance as one by way of miscellaneous appeal. Once the High Court has appellate jurisdiction over the impugned order of the Learned Trail Judge, it is obvious that the High Court was fully competent to interfere with the order by re-appreciation the facts of the case. The learned Single Judge had doubt that respondent being an illiterate lady living in a different town could not have known through the newspaper that her husband head filed a divorce petition against her and, therefore, she had no knowledge about the divorce petition. Consequently, the ex parte decree could be treated as one passed against the party which was not served and which had no knowledge about the said proceedings. The learned counsel for the respondent was also justified in submitting that the Trail Court could not have almost automatically granted the application for substituted service without taking steps for serving the respondent by ordinary procedure as laid down by order V Rules 12, 15 and 17 C.P.C. It must be kept in view that substituted service has to be restored as the last resort when the defendant cannot be served in the ordinary was and the court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way. In the present case, it appears that almost automatically the procedure of substituted service was restored to. It is also clear from the record of the case that respondent being an illiterate lady would not have known about ::: Downloaded on - 04/07/2025 21:31:56 :::CIS
8 ( 2025:HHC:21381 ) passing of the ex parte decree earlier otherwise she could have moved for setting aside the decree on any day prior to the day on .
which she filed this application. Sufficient cause was therefore, made out for condoning the delay in filing the application for setting aside the ex parte decree. The High Court, in our opinion, has rightly code to this conclusion which calls for no interference under Article 136 of the Constitution, when substantial justice had been done to the parties and opportunity has been given to the wife to content the divorce petition which had terminated against her without giving any hearing to her."
7. Learned counsel for the respondent contended that grave injustice would be done to her client, who has now re-
married and has 8 years old child. We could at best share the sentiments and have sympathy for the respondent, but then it is more than settled that both sentiments and sympathy alone cannot be a ground for taking a view different from what is permissible in law. The Courts cannot confer benediction impelled by sympathetic consideration and leniency. Sympathy cannot be allowed to override the statutory and constitutional provisions.
Any such sympathy or leniency shown to the particular party cannot have any adverse effect of affecting the rights of others.
Once the learned trial Court has not followed the procedure as prescribed by law, then such order cannot be upheld on the ground of sympathy alone and, therefore, we find no force in this contention and the same is accordingly rejected.
8. It is next contended by the learned counsel for the respondent that the appellant had been attending certain other ::: Downloaded on - 04/07/2025 21:31:56 :::CIS 9 ( 2025:HHC:21381 ) proceedings in Tarn Taran, where he had been served on the .
same address. However, even this contention does not impress us, as it is not the case of the respondent that the appellant had been residing or had been served at the given address. More importantly, it is not even the contention of the respondent that the appellant was even aware of the instant proceedings and had been deliberately avoiding appearance.
9. As a matter of fact, the notices issued to the appellant herein had been received back unserved, as is evident from the perusal of order passed by the learned trial Court on 18.11.2013 (supra) and thereafter the petitioner (respondent herein) did not bother to file either the process fee or correct address and rather straighaway proceed to move an application for substituted service under Order 5 Rule 20 CPC, which was readily allowed contrary to the provisions of law by the learned trial Court.
10. In view of the aforesaid discussion, we find merit in this appeal. Accordingly, the same is allowed, ex parte decree of divorce dated 09.01.2015, passed by the learned Additional District Judge, Hamirpur, in HMA No. 53 of 2013 is ordered to be set aside and the matter is remanded back to the learned Trial Court.
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11. The parties are directed to appear before the learned .
Trial Court on 18.07.2025.
Pending application(s), if any, shall stand disposed of.
Records be sent back forthwith.
r to (Tarlok Singh Chauhan)
Judge
(Sushil Kukreja)
th
4 July, 2025 Judge
(raman/Sumit)
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